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indra Singh Vs. Shiavax Cawasji Cambata - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 80 of 1947
Judge
Reported inAIR1948Bom347; (1948)50BOMLR203
Appellantindra Singh
RespondentShiavax Cawasji Cambata
DispositionAppeal allowed
Excerpt:
.....act (bom. vii of 1944), section 14, sub-sections (2) and (3) - order of controller-order when final-appeal to collector-finality of collector's order.;under section 14, sub-section (3), of the bombay rents, hotel rates and lodging house rates act, 1944, the order of the controller is final, but it is subject to the decision of the collector when an appeal is preferred. as soon as appeal is preferred, the matter becomes sub judice, and the decision of the collector has the finality which is required under sub-section (3). annamalay v. thornhill [1931] a.i.r.p.c. 263 and nilvaru v. nilvaru (1881) i.l.r. 6 bom. 110 referred to. - - but we do like to say this ;we think it was incumbent upon the collector to have proceeded expeditiously with the appeal which was still pending before..........opinion that means that the finality of the order made by the controller disappears as soon as an appeal is preferred to the collector, and it is only the decision of the collector that becomes final and operative. so long as there is no appeal, the order of the controller is final; as soon as an appeal is preferred, the matter again becomes sub judice, and it is then the decision of the collector which has the finality which is required under section 14(3) of the act. the privy council, in annamalay v. thornhill [1931] a.i.r.p.c. 263 have enunciated the same principle of law. it is true that their lordships were considering the question of res judicata. but the principle enunciated has a wider application than merely to questions of res judicata.4. their lordships there said (p......
Judgment:

M.C. Chagla, Ag. C.J.

1. This is an appeal from a judgment of Mr. Justice Desai, and the short facts leading up to this appeal are that the appellants are the tenants of the respondents, and on March 80, 1940, the respondents gave to the appellants notice to quit terminating on April 30,1946. On September 8,1946, the respondents obtained from the Rent Controller a certificate that these premises were required by them reasonably and bona fide for their own use. On September 18, 1946, the appellants preferred an appeal to the Collector from the decision of the Controller, and on October 9, 1946, the Collector gave a decision contrary to the view taken by the Controller and setting aside the certificate given by the Controller. On November 12, 1946, the respondents filed a petition for a writ of certiorari. Their grievance was that the Collector had decided without hearing them and his decision was contrary to the rules and principles of natural justice. Mr. Justice Bhagwati ordered the writ of certiorari to issue. There was an appeal from his decision to this Court, and on October 8, 1947, the Court of Appeal affirmed the decision of Mr. Justice Bhagwati. On October 20, 1947, the respondents filed the present suit for ejecting the appellants. Their case was that the tenants were not entitled to the protection of the Rent Restriction Act inasmuch as they had obtained a certificate from the Controller that they required the premises reasonably and bona fide for their own use. Mr. Justice Desai decreed the respondents' suit and ordered that the appellants should hand over possession of the premises in suit on or before December 18, 1947. It is from this decision of Mr. Justice Desai that the appellants have come in appeal.

2. The main contention of the appellants is that there is still an appeal pending before the Collector with regard to the certificate issued by the Controller and till that appeal is disposed of it was not competent to Mr. Justice Desai to have decreed the plaintiffs' suit. On the other hand, it is contended by Mr. Kolah that the effect of the order on the writ of certiorari was not only to quash the order made by the Collector, but also to put an end to the appeal which had been preferred. Now, it is necessary to see what the order made by Mr. Justice Bhagwati and by the Court of Appeal on the writ of certiorari was. In the decree that is drawn up dated January 29,1947, it is specifically stated that what is quashed is the order dated October 9, 1946, of the Collector. The decree does not in any way quash the proceedings before him or make any reference to those proceedings, and when the matter came in appeal the Appellate Court dismissed the appeal and affirmed the decree of Mr. Justice Bhagwati. It is clear, in our opinion, both from the judgment of Mr. Justice Bhagwati and the judgment delivered in the Court of Appeal that what was done on the petition for a writ of certiorari was to set aside the order of the Collector because he had given his decision contrary to the principles of natural justice. It was not a case where the Collector had acted without jurisdiction; on the contrary, he had to exercise the jurisdiction conferred upon him by the Act, and he heard the appeal. But he did not hear the appeal as he should have done, namely, conformably to the principles of natural justice, and, as a matter of fact, Mr. Justice Bhagwati in his judgment did state that he was quashing the order so that the Collector should deal with the appeal in accordance with the law or in accordance with the principles of natural justice. It was never suggested either by the learned Judge hearing the petition for the writ of certiorari or by the Court of Appeal that the Collector should not dispose of the appeal or that by reason of their quashing the order the appeal automatically came to an end. It would indeed be a curious result that by the decision of Mr. Justice Bhagwati and the decision of the Court of Appeal the appellants should have been deprived of their statutory right of appeal to the Collector. The respondents' whole grievance was that they were not heard at all by the Appellate Tribunal, but the appellants wanted to exercise their statutory right of appeal, and both the trial Court and the Court of Appeal while setting aside the order of the Collector intended that the Collector should hear the appeal on merits. Therefore, with respect we do not agree with the view taken by Mr. Justice Desai that on the order being made on the petition for the writ of certiorari there was no pending appeal before the Collector.

3. The other point urged is that even if there was a pending appeal, until there has been a decision given by the Collector the landlord is entitled on the strength of the certificate which he has obtained from the Controller to evict the tenant. We are unable to accept that view of the law. The statute provides a special appellate tribunal to which parties can go if dissatisfied with the decision of the Controller, and an appeal has to be preferred within fifteen days from the date on which the order of the Controller is communicated to the parties. Then Section 14(2) provides that the Collector should call for the record of the Controller and after examining the record and after making such further inquiry as he thinks fit, either personally or through the Controller, should decide the appeal, and Sub-section (3) lays down that the decision of the Collector, and subject only to such decision, the order of the Controller shall, for the purposes of this part, be final. Therefore, the order of the Controller is made final, but subject to this important proviso that it is subject to the decision of the Collector. In our opinion that means that the finality of the order made by the Controller disappears as soon as an appeal is preferred to the Collector, and it is only the decision of the Collector that becomes final and operative. So long as there is no appeal, the order of the Controller is final; as soon as an appeal is preferred, the matter again becomes sub judice, and it is then the decision of the Collector which has the finality which is required under Section 14(3) of the Act. The Privy Council, in Annamalay v. Thornhill [1931] A.I.R.P.C. 263 have enunciated the same principle of law. It is true that their Lordships were considering the question of res judicata. But the principle enunciated has a wider application than merely to questions of res judicata.

4. Their Lordships there said (p. 264):.where an appeal lies the finality of the decree on such appeal being taken, is qualified by the appeal and the decree is not final in the sense that it will form res judicata as between the same parties.

5. And in Nilvaru v. Nilvaru I.L.R.(1881) 6 Bom.110 a divisional bench of this Court consisting of Mr. Justice Melvill and Mr. Justice Kemball expressed the opinion that when the judgment of a Court of first instance upon a particular issue is appealed against, that judgment ceases to be res judicata, and becomes res sub judice; and if the appellate Court declines to decide that issue, and disposes of the case on other grounds, the judgment of the first Court upon that issue is no more a bar to a future suit than it would be if that judgment had been reversed by the Court of Appeal. The scheme of the Rent Restriction Act is that certain questions of fact are to be determined by a special tribunal set up under that Act, and that adjudication is binding upon the Court when the parties come here in a civil suit. That adjudication is made final. That very statute also sets up its own appellate tribunal, and, in our opinion, the finality that is given is not to the adjudication by the Controller, but by the Collector if an appeal is preferred from the decision of the Controller to the Collector. Mr. Kolah has contended that we must strictly construe the language of Section 14(3) which speaks of the decision of the Controller being final subject to the decision of the Collector, and what he argues is that so long as there is no decision by the Collector, the order of the Controller must continue to be final. In our opinion that is a strained and Unnatural construction to put upon the section and is contrary to the fundamental principles of jurisprudence as enunciated by the Privy Council and the decision of our High Court to which I have just referred. Such a construction would lead to very extraordinary results. According to Mr. Kolah, a landlord, as soon as he gets a certificate from the Controller, can file a suit and eject his tenant, and it may happen, because of the exigencies of the situation, that the appeal could only be heard after the decision of the suit and even though in the appeal the landlord might lose and the appellate tribunal may hold that the premises were not reasonably and bona fide required by the landlord, still the landlord would be entitled to eject his tenant and deprive the tenant of the protection of the Act, and as far as we can see there is no remedy given to the tenant in law by which he can rectify the situation. Mr. Kolah suggests that the Court of Appeal may set matters right, but that assumes two things: one, that there would be an appeal, and, second, that the Court of Appeal would take into consideration a new fact which had come into existence which was not present at the time of the hearing, and it must also be assumed that the Collector had decided the appeal pending the decision of the appellate Court here. In our opinion, the proper thing for the learned Judge to have done was, as soon as his attention was drawn to the fact that the Collector had not yet disposed of the appeal, to have stayed the suit and awaited the decision of the Collector before deciding the rights of the parties. That is exactly what the Privy Council opined in the decision to which I have referred. They expressed their regret that the second action was not adjourned pending the decision of the appeal in the first action, as that would have simplified procedure and saved expense.

6. We are not passing any final decree in this appeal, because after we had given indication to counsel of the view we were taking, they have very wisely and very sensibly come to terms which are recorded and initialled by counsel; and, therefore, this appeal will stand over in order to give an opportunity to the parties to carry out the compromise. But we do like to say this ; We think it was incumbent upon the Collector to have proceeded expeditiously with the appeal which was still pending before him after his order had been quashed. There is no explanation forthcoming why he should not have proceeded to discharge his statutory duties. The whole object of tenancy legislation is to give relief as expeditiously as possible. The statute gives only fifteen days' time for preferring an appeal and we should have thought that after an appeal is preferred the decision would be given as quickly as possible. We do hope in this case while this appeal stands adjourned the Collector will proceed with the appeal with the utmost despatch.


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